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THE FEDERAL REPUBLIC OF NIGERIA
IN THE COURT OF APPEAL
PORT HARCOURT JUDICIAL DIVISION
ON THE 2ND DAY OF MARCH, 2006
(2007) 2 NWLR (Pt. 1019) p.586
BEFORE THEIR LORDSHIPS
MUSA DATTIJO MUHAMMAD, JCA
ISTIFANUS THOMAS, JCA
MONINC B. DONGBAN-MENSEM, JCA
FRIDAY AGAGARAGA — APPELLANT
THE FEDERAL REPUBLIC OF NIGERIA — RESPONDENT
Dr. I.N. Ijiomah for the Appellant.
A.E. Nwagu for the Respondent.
CRIMINAL LAW AND PROCEDURE – Arraignment of accused person – Proper arraignment – What amounts to – Requirements of – Need for court to satisfy itself that accused understands the charge read to him – Section 36(6), 1999 Constitution and section 218, Criminal Procedure Law.
CRIMINAL LAW AND PROCEDURE – Double jeopardy in criminal process – What amounts to – Whether Constitutional – Section 36(9), 1999 Constitution.
CRIMINAL LAW AND PROCEDURE – Offences – Drugs and Narcotics – Dealing in Indian Hemp without lawful authority – Ingredients of – Section 10( c),
National Drug Law Enforcement Agency Act – ‘Deal in’ – Meaning of
CRIMINAL LAW AND PROCEDURE – Proof of crime – Dealing in Indian Hemp without lawful authority -Duty on prosecution to prove that substance was not tampered with – Where not proved – Effect.
CRIMINAL LAW AND PROCEDURE– Proof of crime – Dealing in Indian Hemp without lawful authority – Proof of – Onus on prosecution – Need to establish that substance found is Indian Hemp
– Section 10( c), National Drug Law Enforcement Agency Act.
CRIMINAL LAW AND PROCEDURE – Where accused pleads guilty to a charge – Conviction thereof – Duty on court in respect of –
Need to exercise caution before pronouncing conviction.
PRACTICE AND PROCEDURE – EVIDENCE – Proof of crime – Dealing in Indian Hemp without lawful authority – Duty on prosecution to prove that substance was not tampered with – Where not proved- Effect.
PRACTICE AND PROCEDURE – EVIDENCE – Proof of crime – Dealing in Indian Hemp without lawful authority – Proof of – Onus on prosecution ~ Need to establish that substance found is Indian Hemp – Section 10( c), National Drug Law Enforcement Agency Act.
(DELIVERED BY MONINC B. DONGBAN-MENSEM JCA)
On the 11th day of July 2001, the Hon. Justice A.M. Liman of the Federal High Court Holden at Umuahia, Abia State of Nigeria, convicted the Appellant and sentenced him to a term of ten years imprisonment without an option of fine. The offence as stated in the charge sheet was & dealing in 34.0 kilograms of Indian Hemp& . known as Cannabis Sativa, without lawful authority contrary to and punishable under section 10 (c) of the NDLEA Act Cap 253 of the LFN 1990 It was a short summary trial, the Appellant having pleaded guilty to the offence.
The Appellant has now come to this Court upon three grounds of appeal challenging his conviction and sentence.
Two issues were formulated for the Appellant for determination. The
Respondent however merged the two issues of the Appellant into one. I
agree with the learned Counsel for the Respondent that the appeal can be
resolved upon the issue formulated for the Respondent.
This appeal shall be determined on the said issue, which fully incorporates the three grounds of appeal filed by the Appellant.
Whether there was a proper arraignment and conviction of the Appellant having regard to:
(a) Section 215 of the Criminal Procedure Act Cap 80 Laws of the Federal 1990;
(b) Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999.
It needs to be stated that section 215 of the Criminal Procedure Law, Cap 31 Laws of Eastern Nigeria 1963 (applicable to Abia State) cited by the learned Counsel to the Appellant and section 215 of the Criminal Procedure Act Cap 80 Laws of the Federation 1990 are one and the same law. Same with section 218 as variously cited by the said learned Counsel.
Citing sections 215 & 36 (6) respectively of the CPL cap 80 LFN 1990, vol. V and the Constitution of the Federal Republic of Nigeria 1999, the learned Counsel to the Appellant contends that the Appellant was not properly arraigned before the trial Court. The learned Counsel submits that merely reading the charge to the Appellant (as accused) without explaining same utterly violated the provisions of section 215 of the CPL & 36(6) of the 1999 Constitution. (supra). The situation, maintains Counsel, was further compounded by the fact that the Appellant, by the records of the Court, is not literate in English language, which is the language of the Court. Accused was recorded as speaking Igbo.
The learned Counsel posits that by these facts alone, the entire proceedings conducted by the trial Court was a nullity. Counsel cited the following cases to buttress his argument:
2. Kalu v. The State (1998) 13 NWLR, (PT 583) P 531.
3 Duwade v. The State (2001) 7 WRN p. 50 at 61.
4. Adeniji v. The State (2001) 25 WRN, p 117 at 126, lines 10-20.
The learned Counsel to the Respondent contends the contrary.
Counsel submits that the records of the trial Court as shown on page 2 lines
1-4 and 5 indicate that the trial Court complied with the provisions of section
215 and 218 of the CPA. It is further the contention of the Counsel that the
charge was interpreted to the Appellant, he understood and pleaded guilty
thereto. The Court was satisfied that the Appellant understood the charge
against him and intended to plead guilty to it. The court convicted and
sentenced him accordingly.
I must say straight away that the records of this appeal do not support this submission of the learned Counsel. Section 132 of the Evidence Act Cap 112 LFN 1990 provides for the bindingness of the records of proceedings. In the case of Mohammed Bello & 7 Ors v. The State (1994) 5 NWLR pt 343 p 177 at 186, the Jos Division of this Court held that the records of the lower Court bind this Court. It cannot therefore add to nor substract from the records before it or guess or conjecture at the contents of the record of proceedings. The written brief of the learned Counsel cannot supplement the records of the lower Court.
There is nothing on page 2 lines 1-4&5, nor on any other page of the short proceedings which shows that the trial Judge satisfied itself that the Appellant fully understood the charge and intended to plead guilty to same.
The short proceedings in the suit is hereby reproduced for purposes of emphasis and the ease of reference:
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE UMUAHIA JUDICIAL DIVISION
HOLDEN AT UMUAHIA
ON WEDNESDAY THE 11TH DAY OF JULY, 2001
BEFORE THE HO. JUSTICE A.M. LIMAN JUDGE.
CHARGE NO FHC/UM/86C/2001
THE FEDERAL REPUBLIC OF NIG. – COMPLAINANT
FRIDAY AGAGARAGA – ACCUSED
Accused in Court:- Speaks Igbo.
Appearances:- B.E. Igberaese for the Complainant.
Court Clerk:- Interpreting.
Charge read to the Accused.
Accused:- I understand the Charge and I plead guilty.
Igberaese:- Based on the plea of guilty of the Accused I will like to tender the following in evidence:-
1) Certificate of test analysis was thumb printed by me.
2) Also packing of substance Form.
3) The Statement was made by me.
Court:- The above documents are admitted in evidence and marked as Exhibit 1,2,3, and 3A respectively.
The bulk of the sack containing the Exhibit is admitted and marked
as Exhibit 4.
The Appellants plea to the charge read to him as shown supra is ‘I understand the charge and I plead guilty’. He was asked no question by the trial Court upon his plea of guilt. By the records the next statements of the Appellant were as to the exhibits tendered by the prosecution; rather short responses to serious legal proceedings.
Exactly what was the charge to which the Appellant pleaded guilty?
It is necessary to reproduce the said charge which is recorded at page One of
the records for this appeal:-
That you, Friday Agagaraga, male, adult on or about the 5th of May, 2001 at Asagba Camp, Uchie Village, Ndokwa East, Local Government Area of Delta State, within the jurisdiction of this Court without lawful authority dealt in 34.0 kilograms of Indian hemp otherwise known as cannabis sativa, a drug similar to cocaine, Heroin, LSD and thereby committed an offence contrary to and punishable under Section 10 ( c) of the National Drug Law Enforcement Agency
Act Cap 253 Laws of the Federation 1990 (as amended).
Dated this 20th day of June 2001.
For Attorney General of the Federation .
The offensive act is dealing in Indian Hemp. What is meant by dealing in? The offence is contrary to and punishable under section 10 (c) of the NDLEA Act Cap 253.
The charge does not however state the nature of the punishment.
Section 10 (c) of the NDLEA Act states the ingredients of the offence as follows:-
Section 10: - Any person who, without lawful authority (c) sells, buys, exposes, or offers for sale or otherwise deals in or with the drugs popularly known as cocaine, LSD, heroine or any other similar drugs shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life; or…
There is nothing on the records to show that these ingredients of the offence were sufficiently explained to the Appellant before the trial Court.
It is obvious from the records of the proceedings that the Appellant was not represented by a Counsel nor was the Appellant recorded as being a lawyer and was therefore representing himself. The Appellant spoke Igbo and the Court Clerk was recorded as the interpreter.
The plea of guilt of the Appellant was rather too brief to be have been instantaneously acted upon as did the trial Court. The offence as stated in the charge ‘dealing in’ is vague. If the Appellant is understood as admitting the offence which could gaol him for life, I think it incumbent on the trial Judge to satisfy itself that the Appellant indeed understood what he is said to have done and the implication of same. By the provisions of section 218 of the CPA Cap 80 (supra) the trial Judge has a duty to satisfy itself that the accused person intended to admit the trust of all the essentials of the offence of which he has pleaded guilty.(emphasis mine)
There is nothing in the records which show a compliance with this vital provision of the law in a proceedings which could divest the accused of his liberty for as long as ten years up to a life term of imprisonment. The case of Durwode v The State 4 NSCQR pg 33 at 43 cited by the learned Counsel to the Respondent is not applicable to the facts of the instant appeal.
Nor is the case of Okoro v State (1993) 3 NWLR pt 282 p 425 at 436.
Appellant was not represented by Counsel.
The punishment for the offence was not stated in the charge. How did the trial Court comply with the provisions of section 215 of the CPL and 36 (6) of the 1999 Constitution as contended by the learned Counsel for the respondent? What are the essentials of the offence to which the Appellant pleaded guilty?
Incidentally, Indian Hemp also known as cannabis Sativa is not one of the substances listed under section 10 (c ) of the NDLEA ACT.
Section 44 of the NDLEA Act which gives the interpretation of the words and phrases used in the Act gives no definition nor expatiation of the terms ‘deals in’. The Oxford Advanced Learner’s Dictionary 5th Edition by Jonathan Crowther pg. 298 states the meaning of ‘Deal in’ as to buy and sell something as a business. By this definition deal inmeans the same as the ingredients listed in section 10 (c) to wit sells, buys, exposes or offers for sale. Which then, of these activities did the Appellant’s plea of guilt admit to doing?
Section 10 (c) of the Act is vast and requires some expatiation by the learned trial Judge. The alleged confessional statement of the Appellant notwithstanding, the trial Judge was obliged by law to satisfy itself that the accused fully comprehended the offence to which he pleaded guilty.
The Supreme Court, per Ogwuegbu JSC, declared such a mini compliance with the provisions of Section 215 of the CPL and Sec. 33(6) (a) of the 1979 Constitution as a mockery of what a plea under the law should be. (Refer Paulinus Tobby (Alias Udo Ebby) v The State (2001) 4 SCNJ
pg 356 at 362. Also Kajubo v The State (1988) 1 NWLR pt 73 p 721).
The offence carries a maximum punishment of life imprisonment.
A conviction, which can divest a citizen of Nigeria of his liberty for life is not one that should be pronounced in haste. Section 218 of the CPA (supra) referred.
The magnitude of the sentence for the offence is sufficient to compel the trial Judge to exercise slow haste in the pronouncement of a conviction and sentence on the accused person upon a perceived plea of guilt and a confessional statement.
The learned Counsel to the Respondent has in the brief of argument produced a beautiful treatise on what amounts to a proper arraignment in a criminal trial. None of the procedure was however complied with in the trial under review.
One would expect that as a Minister in the Temple of Justice, the learned Counsel would have honourably conceded to this appeal in view of all the fundamental omissions made at the trial. A learned Counsel needs not contest the obvious.
In the circumstance of the instant appeal, the Appellant cannot be said to have been informed in the language that he understands, and in DETAIL of the nature of the offence to which he pleaded guilty, as required by section 36 (6) of the 1999 Constitution and sections 217, 218 and 285 of the CPL.
Having found that the Appellant was not properly arraigned before the trial Court, it would be academic to consider in details whether his conviction and sentence is proper. No good can flow from a bad process.
The Appellant could not have in law been convicted and sentenced in the circumstance. The said conviction and sentence are hereby set aside.
The appellant has since been serving the sentence imposed on him by this illegal process.
The learned counsel for the appellant has urged us not to order a retrial as such order would amount to double jeopardy.
Double jeopardy in a criminal process means being tried twice for the same offence.
Section 36 (9) of the 1999 Constitution prohibits the trial of a person more than once for the same criminal offence. We shall let the sleeping dogs lie.
MONINC B. DONGBAN-MENSEM JP, JUSTICE, COURT OF APPEAL